United States v. William Rabinowich

Decision Date01 June 1915
Docket NumberNo. 748,748
Citation59 L.Ed. 1211,35 S.Ct. 682,238 U.S. 78
PartiesUNITED STATES, Piff. in Err., v. WILLIAM RABINOWICH
CourtU.S. Supreme Court

Assistant Attorney General Warren for plaintiff in error.

[Argument of Counsel from pages 79-80 intentionally omitted] Messrs. William R. Harr and Charles H. Bates for defendant in error.

[Argument of Counsel from pages 81-83 intentionally omitted] Mr. Justice Pitney delivered the opinion of the court:

This is a writ of error, taken under the criminal appeals act of March 2, 1907 (34 Stat. at L. 1246, chap. 2564, Comp. Stat. 1913, § 1704), to review a judgment of the district court sustaining, on demurrer, a special plea in bar to an indictment for conspiracy found June 24, 1912, and based upon § 37 of the Criminal Code of March 4, 1909 (35 Stat. at L. 1096, chap. 321, Comp. Stat. 1913, § 10,201), formerly § 5440, Rev. Stat. The indictment embraces six individuals, including defendant in error, and contains two counts, of which the first recites that three of the defendants, K., R., and F., were doing business as copartners, and had on hand a large quantity of goods; that they and the other named defendants contemplated and planned that the copartners should commit an act of bankruptcy, an involuntary petition in bankruptcy should be filed against them, they should be adjudged bankrupts, and thereafter a trustee in bankruptcy should be appointed; and avers that, under these circumstances, the defendants named, including K., R., and F., conspired and agreed together that K., R., and F. should conceal, while bankrupts, from the trustee of the estate in bankruptcy, certain specified property belonging to said estate in bankruptcy. Overt acts are alleged. The second count differs in its recitals, but does not differ in any respect now material in setting forth the conspiracy. In each count the conspiracy and overt acts are stated to have taken place in March and April, 1911, more than a year before the finding of the indictment. Neither count avers a continuing conspiracy. The plea sets up the alleged bar of the statute of limitations contained in § 29d of the bankruptcy act (30 Stat. at L. 554, chap. 541, Comp. Stat. 1913, § 9613), in that the indictment was not found within one year after the commission of the alleged offenses. The district court held, upon a construction of the applicable statutes, that the prosecution upon the charges contained in the indictment was limited by the section thus invoked, and not by § 1044, Rev. Stat., Comp. Stat. 1913, § 1708.

The pertinent statutory provisions are set forth in the margin.1 Section 1044, which of course antedated the bankruptcy act, declares that no person shall be prosecuted for any offense (with exceptions not now material), unless the indictment is found or information instituted within three years next after such offense shall have been committed; while § 29d of the bankruptcy act limits to one year the prosecution 'for any offense arising under this act.' The narrow question presented is, whether a conspiracy having for its object the commission of an offense denounced as criminal by the bankruptcy act is, in itself, an offense 'arising under' that act, within the meaning of § 29d.

It is apparent from a reading of § 37, Crim. Code (§ 5440 Rev. Stat.), and has been repeatedly declared in decisions of this court, that a conspiracy to commit a crime is a different offense from the crime that is the object of the conspiracy. Callan v. Wilson, 127 U. S. 540, 555, 32 L. ed. 223, 228, 8 Sup. Ct. Rep. 1301; Clune v. United States, 159 U. S. 590, 595, 40 L. ed. 269, 271, 16 Sup. Ct. Rep. 125; Williamson v. United States, 207 U. S. 425, 447, 52 L. ed. 278, 290, 28 Sup. Ct. Rep. 163; United States v. Stevenson 215 U. S. 200, 203, 54 L. ed. 157, 158, 30 Sup. Ct. Rep. 37. And see Burton v. United States, 202 U. S. 344, 377, 50 L. ed. 1057, 1069, 26 Sup. Ct. Rep. 688, 6 Ann. Cas. 362; Morgan v. Devine, No. 685, decided this day [237 U. S. 632, 59 L. ed. 1153, 35 Sup. Ct. Rep. 712]. The conspiracy, however fully formed, may fail of its object, however earnestly pursued; the contemplated crime may never be consummated; yet the conspiracy is none the less punishable. Williamson v. United States, 207 U. S. 425, 447, 52 L. ed. 278, 290, 28 Sup. Ct. Rep. 163. And it is punishable as conspiracy, though the intended crime be accomplished. Heike v. United States, 227 U. S. 131, 144, 57 L. ed. 450, 455, 33 Sup. Ct. Rep. 226, Ann. Cas. 1914C, 128.

Nor do we forget that a mere conspiracy, without overt act done in pursuance of it, is not criminally punishable under § 37, Crim. Code. United States v. Hirsch, 100 U. S. 33, 34, 25 L. ed. 539, 540; Hyde v. Shine, 199 U. S. 62, 76, 50 L. ed. 90, 94, 25 Sup. Ct. Rep. 760; Hyde v. United States, 225 U. S. 347, 359, 56 L. ed. 1114, 1123, 32 Sup. Ct. Rep. 793, Ann. Cas. 1914A, 614. There must be an overt act; but this need not be of itself a criminal act; still less need it constitute the very crime that is the object of the conspiracy. United States v. Holte, 236 U. S. 140, 144, 59 L. ed. 504, 35 Sup. Ct. Rep. 271; Joplin Mercantile Co. v. United States, 236 U. S. 531, 535, 536, 59 L. ed. 705, 35 Sup. Ct. Rep. 291. Nor need it appear that all the conspirators joined in the overt act. Bannon v. United States, 156 U. S. 464, 468, 39 L. ed. 494, 496, 15 Sup. Ct. Rep. 467, 9 Am. Crim. Rep. 338. A person may be guilty of conspiring, although incapable of committing the objective offense. Williamson v. United States, and United States v. Holte, supra. And a single conspiracy might have for its object the violation of two or more of the criminal laws, the substantive offenses having, perhaps, different periods of limitation. (See Joplin Mercantile Co. v. United States, 236 U. S. 531, 547, 548, 59 L. ed. 705, 35 Sup. Ct. Rep. 291, for an instance of a conspiracy with manifold objects.)

It is at least doubtful whether the crime of concealing property belonging to the bankrupt estate from the trustee, as defined in § 29b (1) of the bankruptcy act, can be perpetrated by any other than a bankrupt or one who has received a discharge as such. Counsel for defendant in error refers to § 1, subdivision 19, of the act, which gives the following definition: '(§9) 'Persons' SHALL INCLUDE CORPORATIONS, EXCEPT WHERe otherwise specified, and officers, partnerships, and women, and when used with reference to the commission of acts which are herein forbidden shall include persons who are participants in the forbidden acts, and the agents, officers, and members of the board of directors or trustees, or other similar controlling bodies of corporations.' But the circuit court of appeals for the eighth circuit has held that this does not broaden the interpretation of § 29b (1) and that present or past bankruptcy is an attribute of every person who may commit the offense therein denounced. Field v. United States, 69 C. C. A. 568, 137 Fed. 6. And see Kaufman v. United States, 129 C. C. A. 149, 212 Fed. 613, 617.

But, if there be doubt about this, we are not now called upon to solve it. For, as appears from what has been said, the defendants here accused include six individuals, only three of whom (not including defendant in error) were the owners of the property that was to be unlawfully concealed; and the conspiracy, as alleged in each count, was that these three, and they only, should, while bankrupt, conceal the property. Of course, an averment that the others were parties to the conspiracy is by no means equivalent to an averment that they were to participate in the substantive offense. And so we have the typical case of a conspiracy that is in every way distinct from the contemplated crime that formed its object.

Defendant in error, while conceding, for the purposes of the argument, that the conspiracy and the substantive offense are separate and distinct, insists that the question...

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